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tv   Politics and Public Policy Today  CSPAN  January 5, 2016 4:13pm-6:14pm EST

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against homosexuality played a central role in the justice's reasoning in bowers and it's therefore useful to have some understanding of that history. so, let's take a look at the ancient roots justice white invoked. the prechristian world thought of sex as a positive part of human nature. it did not see sex as bound up with issues of sin or religion. the ancient greeks for example focused not on sexual sin, but on whether an individual's conduct was harmful to others. and this extended even to homosexuality. indeed, a common feature of greek sexual life was that adult men often had same sexual relationships with adolescent boys. this might seem strange to us, but greek poetry, history and literature celebrated such relationships and identified them with love, integrity, honor
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and courage. similarly, although roman sexual life was different from that of the greeks, the romans, too, celebrated sexual pleasure an neither roman religion or law condemned same sex sex. the emergence of christianity, however, produced a profound change in the prevailing understandings of sex. by the end of the fifth century, christianity had come to condemn sexual desire as inherently shameful and as an evil temptation that must be suppressed. this shift occurred over the course of several centuries, but it was augustan who finally crystallized the understanding of sex. he linked sexual desire to the fall of man. adam's transgression, he argued, had not been one of disobedience, as the ancient hebrews believed, but of sex, and is born out of evil, that every child born of evil is born into sin and it is through sex
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that man passes on the original sin from one generation to the next. augustan therefore concluded that man's only hope for redemption lay in repudiating the sexual impulse and, with it, the burden of sin and shame inherited from adam. his vision ultimately shaped the future. not only of christianity, but of western culture and law more generally. during the next thousand years, christian dogma backed by the threat of hell fire and damnation, became not only religion, but social, political authority. the sin of sodomy came to be seen as uniquely dire. for as the biblical story of sodom, god will punish not only
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the sinners, but those who fail themselves to prevent the sin. but it was still unclear what act constituted sodomy. thomas equinas first drew a sharp distinction between opposite sex and same sex unnatural acts. oral or anal sex with a person of the opposite sex was deemed a vice against nature. such acts with a person of the same sex he concluded constituted the worst form of sodomy. before long, thomas' thinking on this point became the dominant authority in christian doctrine. and roughly the same time, same-sex sex came for the first time to be declared not only a sin, but also a crime. that is the church for the first time conscripted the secular law to extend its prohibition on same sex sex, not only to those who shared the faith, but to
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everyone, regardless of their personal religious beliefs. criminal statutes against same sex sex were thus enacted throughout europe and because of the heinous nature of this crime, these laws called for homosexuals to be castrated, dismembered, burned at the stake, drowned, hanged, stoned to death, decapitated or buried alive. in short, homosexuals for the first time became the object of a systematic campaign of extermination. little reformation brought about significant changes in the protestant attitude towards sex. those changes did not extend to homosexuality. to the contrary, protestant reformers reaffirmed no uncertain terms the traditional condemnation of homosexuality as a detestable and abominable sin. in the american colonies, for example, the puritans declared that sodomy must be punished by death without mercy. by the time of the american revolution, the colonies under the influence of the
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enlightenment, had stopped using the criminal law to prosecute most form of consensual sex. except for the crime of sodomy, which remained a capital offense. indeed, sodomy remained a serious felony in every state in the nation for the next 200 years. throughout all of this history, until the late 19th century, it was generally assumed that individuals who chose to engage in same-sex sex were no different than other individuals who chose to engage in other types of criminal or sinful behavior. engaging in homosexual sex, like engaging in murder or robbery, was simply a choice. that assumption began to be questioned for the first time in the late 19th century. as medical authorities became interested in the issue. for the first time, persons drawn to same-sex sex began to be seen as individuals possessed of a distinctive psychological
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identity. it was in this era that the concept of the homosexual first came into being. leading studies of homosexuality in the late 19th century, that it was a pathology, that persons afflicted with this were strange freaks of nature. among the questions debated were whether the inclination to engage in homosexual conduct was congenital or acquired. whether it was curable or incurable. and whether it should be accepted as an unavoidable condition or actively resisted and suppressed. physicians in this era proposed a broad range of remedies for homosexuality, including hypnosis, sex with prostitutes, intense bicycle riding, recollectal massage, burning the neck and lower back with hot irons, electric stimulation, castration and clerectomy.
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many doctors recommended the sterilization of homosexuals in order to prevent this from being passed on from one generation to the next and by 1938, 32 states had enacted compulsory sterilization laws aimed at homosexuals. also in 1930s, the image of the homosexual took on a sinister cast. growing public anxiety over sex crimes recast the dominant image of dangerous psycho paths. demon as perverts and child molesters, homosexuals became the new enemy of the people, and arrests for sodomy increased dramatically in the 1930s. during world war ii, the united states for the first time, attempted to prevent homosexual men and women from entering the military and those who were discovered were discharged in
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proceedings that often left them branded for life. with the advent of the cold war, things got even worse. fearful of domestic aversion, americans turned with a vengeance against homosexuals. for americans viewed communism as atheistic, unchristian and degenerate. as one congressman asserted, the russians are strong believers in homosexuality. and journalists warned that communists are now converting american youth to homosexuality in order to defeat us from within. by 950, the lavender scare, as it came to be called, was underway. the government began using lie detectors to determine if their employees were homosexuals. the fbi compiled lists of suspected homosexuals and
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president eisenhower issued an executive order declaring sexual perversion, by which he meant homosexuality, a serious security risk. in light of the intensity of the antihomosexual fever that gripped the nation, gays and lesbians found themselves increasingly isolated. in a society in which the dominant religion excoloruated it as a heinous sin, the law branded it as a vicious crime and the medical profession diagnosed it as a disease, the harbored homosexual impulses did their best to hide their secret shame from family, friends, neighbor, employers and associates. the terrible fear of discovery kept the secret lives of most homosexuals invisible, even to one another. indeed, even civil rights groups turned their backs on gays and lesbians in this era. in 1957, the civil liberties union declares quote, it is not wherein the province of the aclu
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to question the validity of the laws aimed at the suppression or elimination of homosexuals. in the late 1960s though, inspired by the women's rights movement, a handful of courageous gay men and lesbians began calling openly for the acceptance of homosexuals as equals in society. in 1969, for example, carl whitman penned what he termed the gay manifesto, in which he declared quote, our first job is to clear our own heads of the garbage that's been poured into them. liberation for gay people is defining for ourselves who we are. it is time for us to come out. this was the first time this anyone had used the term, come out, in this manner. for those who saw it, equal rights for gays and lesbian, coming out was a radical and daring act that would affect every aspect of their lives.
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indeed, as late as 1959, only a few hundred members of the growing gay rights organizations of the united states that publicly identified themselves as homosexuals. the next decade saw a gradual, but halting progress in the cause for gay rights. in 1972, a lesbian was allowed to retain custody of her children in a contested divorce for the first time in american history. in 1973, the american psychiatric association declared for the first time that homosexuality was not a mental illness. and by the end of the decade, 22 states adopting the recommendation of the american law institute has repealed their laws, making consensual sodomy a crime. illinois by the way was the first state in the nation to do this. these developments sparked a sharp backlash, however. the most explosive response arose out of a proposed gay
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rights ordinance in dade county, florida. in 1977, the county commission passed an ordnance -- on the basis of sexual orientation. local religious groups were outraged and demanded a repeal of the ordnance. local baptists charged that it violated god's commandments and national evangelicals soon entered the fray. leaders of the christian right came to miami to campaign in favor of repeal. and in the special referendum, dade county's voters repealed the ordnance by an overwhelming margin. this victory generated momentum for new religion based antigay movement. the campaign took on an ugly as bumper stickers appeared across the nation with such messages as kill a queer for christ. within two years, many of the laws that had been enacted in other cities to protect gays and lesbians from discrimination were also repealed. the christian right charged
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during this campaign that such laws promoted child molesting and gay recruiting. and the reverend jerry falwell raged that homosexuals did not reproduce, they recruit. and they were after your children. they saw this fight as a religious battle for the christian soul of america. soon therefore, aids struck the gay community with a vengeance. as the disease became associated in the public mind with homosexuality, the christian right deemed it god's punishment for homosexual sodomy. the reagan administration had no interest in devoting government time or money to an illness that was thought to threaten only gay men. rather than invest federal funds in medical research, the white house instructed the center for disease control, quote, to look pretty and do as little as you can. over the course of the next decade, aids ravaged the homosexual community, killing
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more than a quarter of a milliob gay men and leaving hundreds of thousands more to wonder if they might be next. ironically though, the horror of aids brought homosexuality into the light. as thousands of gay men died horrible deaths, people had to take notice. often, though not always, with sympathy and concern. gradually, one person at a time in often awkward and painful conversations, with family, friends and acquaintances, the previously closeted lives of homosexuals became visible. first, out of necessity and desperation and later, out of canned -- candor and self respect.
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gay and visibility was suddenly melting away. but the gay and lesbian march of washington in 1993, hundreds of thousands of individuals wearing pink triangles marched proudly past the white house. i know because i was there. there's the pin that i wore that day. now, i have to confess that i wasn't in washington in order to participate in the march. rather, i was there for a reunion of justice william brennan lockhart at the supreme court that happened to be on the same day as the march. but once there, i did participate in the march. but now, i want to tell you something that i've only once publicly revealed before. after i got to the supreme court for the reunion, the brennan clerks all gathered in the supreme court chamber and i had a couple of these pink triangle buttons in my pocket. my former wife, nancy, and i decided we had to do something
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in the spirit of the day. so while i kept guard, she discreetly pinned a pink triangle button and a red stripe on the large american flag that hangs next to the bench behind which the justices sit when they are hearing cases. and the last time i checked, it was still there. but don't tell anyone. in any event, to return to my theme, four years after the 1993 march, ellen degeneres, star of the popular abc television show "ellen," came out as a lesbian. shortly there after, some 42 million viewers tuned in to watch her character, ellen morgan, reveal that she, too, was a lesbian. but not everyone cheered. the response of the christian right was fierce. the reverend jerry falwell called ellen degenerous ellen degenerate. and donald wild mann railed that
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homosexuality was a sin grievious to god and repulsive to christians. the struggle was a matter of life and death, because if we fail, we fear the judgment of god on our nation. the battle lines had been clearly drawn. that brings me back to the supreme court. as we saw earlier in its first encounter with homosexuality, the supreme court held in bowers that a state could make that conduct a criminal offense and the court explained that given the history of religious and moral condemnation of homosexuality, any suggestion that the constitution could be interpreted as protecting such behavior was at best, facetious. the second quorum into this arena was exactly a decade after bowers. as i noted earlier, beginning in the late 1970s, several cities, like dade county, had enacted
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ordnances, prohibiting discrimination on the basis of sexual orientation. as in dade county, however, this generated a sharp response from the christian right, which usually succeeded in getting the laws repealed. in colorado, after denver enacted an antidiscrimination ordnance in 1991, coalition of christian right organizations launched an aggressive campaign to amend the colorado constitution to override the city's ordnance. amendment two, which was adopted in a statewide referendum, provided that neither the state of colorado nor any of its subdivisions could enact a law that protected homosexuals against discrimination. nine days later, lawyers from the american civil liberties union, which changed its mind, filed suit claiming amendment two violated the united states constitution. in light of bowers, it seemed clear that the supreme court would reject the challenge and
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uphold amendment 2. but in a stunning 6-3 decision, the court held amendment 2 unconstitutional. justice anthony kennedy, who had been appointed to the court by reagan, authored the court's opinion and kennedy's view, the problem with amendment two was that it imposed a special disability only upon homosexuals. this was so because under amendment 2, every group in colorado was free to try to persuade the city council or state legislature to enact laws protecting them against discrimination except homosexuals. because of amendment two, only homosexuals would have to amend the state constitution before they could obtain protection against any discrimination. with that in mind, justice kennedy turned to the clause which provided no state shall deny to any person the equal
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protection of the laws. under that guarantee, if the law treats some people differently from others, it orderly will satisfy the equal protection clause as long as it bears a rational relationship to some legitimate purpose. and although almost every law passes that highly differential standard of review, justice kennedy concluded that amendment two did not. this was so, kennedy reasoned, because a law declaring it shall be more difficult for one group of citizens than for others to seek aid from the government was virtually unprecedented in american history and was, therefore, impossible to escape the inference that the disadvantage being imposed on homosexuals be by this constitutional amendment was the result not of a rational effort, but of animosity and antagonism
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towards the class of persons. and a desire to harm a politically popular group cannot itself constitute a legitimate government interest, kennedy concluded that amendment two violated the constitution. justice antonin scalia, joined by justice rehnquist and thomas, was of a rather different view. scalia maintained that two is not the manifestation of a quote bear desire to harm homosexuals, but a rather and perfectly legitimate to preserve ra additional sksual morals. the supreme court third decision involving the rights of homosexuals was pretty much a rerun of bowers. police officers in houston were dispatched to a private residence in response to a
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reported disturbance. after they entered the residence, saw two men engaged in anal sex. the men were arrested, charged and convicted of violating a texas statute, making it a crime for any person to engage in devious sexual intercourse with another person of the same sex. since 1982, bowers has been used by politicians, legislators and judges to justify discrimination against gays and lesbians in deportation proceedings, adoption proceedings, military discharges, employment discrimination and a host of other contexts. after all, homosexual conduct is criminal, then a homosexual is no different than a rapist, robber or a thief. but much has changed in the 17 years since bowers and lawrence. not only had aids devastated the gay community and changed the public's perception of homosexuality, but 60% of americans now thought homosexual
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sex should no longer be deemed a criminal offense. in a 6-3 decision, the supreme court overruled bowers v. harwick and held the texas statute unconstitutional. justice kennedy again delivered the opinion of the court. kennedy maintained that the court's reasoning in bowers v. hardwick had been distorted in such deeply personal relationships. although conceding that the framers of the constitution had not expressly guaranteed the right to engage in homosexual sex, kennedy explained that the framers had left some constitutional guarantees open ended, because they knew later generations concede that laws one thought proper in fact serve only to oppress and to be unfair. that, kennedy main taint, was the situation in lawrence. there was included no
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constitution alley legitimate constitution alley legitimate justification for making same-sex sex a crime. justice scalia joined once again by rehnquist and thomas, dissented. scalia accused the court of signing on to what he termed the homosexual agenda and fumed that the court had no business invalidating legislation that had legitimately been enacted by the citizens of texas. echoing scalia's outrage, conservatives were livid. pat robertson denounced the court for rendering the moral fabric of the nation. jerry falwell warned that lawrence v. texas would lead to beastiality. and a pastor in kansas moved it marked the death nail of american civilization. when it came time for justice kennedy to announce the court,
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he read a brief statement explaining the result from the bench. the supreme court chamber was of course packed. at the end, he declared quote, bowers v. hardwick was not correct when decided and it is not correct today. it ought not to remain binding precedent. bowers v. hardwick should be and now is overruled. it was a remarkable moment. overwhelmed at what was happening, many of the gay and lesbian advocates sitting in the gallery openly sobbed. to the gay and lesbian community, it was an occasion for dancing in the streets. joyous demonstrations erupted in cities across the nation. for gays in america, lawrence meant much more than that rare enforced anti-sodomy laws could no longer be enforced. rather, lawrence meant that never again would their rights be dismissed by the highe esest tribunal in the land as, at best, facetious.
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never again would they wonder whether the words engraved on the pediment of the supreme court building equal justice under law included them. the constitution was now their constitution, too. in san francisco, a group of veterans who had been expelled for military service during world war ii because of their sexual orientation, proudly saluted as the rainbow flag, which had flown atop an 80-foot pole for more than five years, was lowered and an american flag was raised in its place. for most of american history, the notion that a man could marry a man or a woman could marry a woman seemed utterly absurd. 1990, however, only four years after bowers, three gay couples in hawaii applied for marriage licenses. which were of course denied. audaciously, they then filed suit in state court claiming the state's refusal to allow marriage violated the hawaii constitution. to pretty much everyone's
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surprise, the hawaii supreme court ruled in 1993 that the state's law restricting marriage to a man and a woman might, indeed, violate the hawaii constitution. this decision provoked a furious response from the christian right and almost immediately, states across the nation rushed to amend their state constitutions explicitly to define marriage as involving only one man and one woman. the goal of these amendments was both to prevent their own state courts from following the hawaii supreme court suggestion and to make it impossible for future majorities in this state, should they ever emerge, to legalize same-sex marriage by enacting legislation to that effect. these issues played out at the national level as well. as the 1996 election approached, the antigay rhetoric was -- dick armey, the republican whip in the house, publicly referred to barney frank as barney fag and republican speaker of the house,
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newt gingrich, proposed doma, which provided, among other things, that if any state were to recognize marriages between persons of the same sex, persons entering into such marriages would be ineligible for any of the multitude of federal benefits that were otherwise available to married couples. the hearings on doma were openly homophobic. members of congress described gays and lesbians as, quote, sick, perverted and dangerous, charged that the nation was facing a dangerous attack among god's principles and at the flames of -- congress quickly enacted the legislation and with the presidential election around the corner and with the american people opposed to same-sex marriage by a margin of 68% to 23%, president bill clinton signed doma into law. of course, none of this really mattered at the time because
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same-sex marriage was not legal in any state in the nation. seven years later though in 2003, the massachusetts supreme court held that laws denying same-sex couples the freedom to marry violated the massachusetts constitution. massachusetts became the first state in the nation to legalize same-sex marriage. in response, 13 additional states promptly amended their state constitutions to make clear that they prohibited same sex marriage. several years later though, the supreme courts of connecticut, california and iowa followed massachusetts' lead and held their state constitutions also guaranteed same-sex couples the right to marry, but the pushback again was furious. in california, for example, the christian right launched a vigorous and successful campaign to amend the state constitution to outlaw same-sex marriage and overreside the supreme court's opinion. and voters in iowa, spurred on by the moral majority, voted out
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of office three of the justices who had voted to recognize state constitutional right in same-sex marriage. as the executive director warned, if any judge attempts to impose an immoral agenda on us, we are going to take you out. thus, despite several landmark victories, the movement for same-sex marriage had stalled. doma remained the law nationally. most efforts to legalize same-sex marriage had overturned and by 2013, more than 30 states had expressly outlawed same-sex marriage. this brings me to the supreme court's fourth decision. windsor versus the united states. in a bitterly divided 5-4 decision, the supreme court invalidated domo on june 26th, 2013, ten years to the day after its decision in lawrence.
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justice anthony kennedy again authored the opinion of the court. he was joined p by justices ginsburg, briar, sotomayor and kagan. chief justice roberts and justice scalia, thomas dissented. in his opinions of the court, kennedy explain that had issue presented was not whether the states were constitutionally obligated to recognize same-sex marriage. rather, the issue was to whether the federal government could constitutionally discriminate against couples who had been legally married in a state because they happened to be of the same sex. approaching that question, justice kennedy emphasize that had a state's decision to give same-sex couples the right to marry conferred upon them dignity and status. doma's principle effect, kennedy maintained, was to identify a subset of state sanctioned marriages and to make them
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unequal. kennedy argued that by placing legally married same-sex couples in the position of being second tier marriages, doma demeaned the couple and humiliated tens of thousands who were then being raised by same-sex couples. because no legitimate federal interest justified a law disparaging those whom the state sought to protect. kennedy concluded doma violated the constitution. in a furious opinion, justice scalia characterized the court's reasoning as nothing short as remarkable. he dismissed kennedy's analysis as perplexing, confusing, absurd, overcooked and legalistic argle-bargle. the constitution does not forbid the government to enforce traditional sexual norms and scalia angrily predicted that windsor would lead to a
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recognition of a constitutional right of same-sex marriage. as far as this court is concerned, he fumed quote, no one should be fooled. it is just a matter of waiting for the other shoe. striking how far the court had moved in the 27 years from bowers to windsor. this was due to several factor, one of which was not an overall move of the court in a more liberal direction. to the contrary, under a broad range of issues including affirmative action, campaign finance, gun control and voting rights, to name just a few, the supreme court with the additions of justice scalia, kennedy, thomas, roberts and alito, had moved more conservative than the court had been at the time of bowers. what had changed in those years was the public awareness of gays and lesbians in society and the public legal understanding of both the morality and wisdom of laws discriminating on the basis of sexual orientation. indeed, public opinion on those
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issues shifted dramatically between bowers and windsor. in 1986, no one had even bothered to poll on the question of same-sex marriage. the idea seemed ludicrous. it wasn't until 1996 that gallup thought to ask people about same-sex marriage and at that time, only 22% of americans thought it should be legal. by 2013, however, 54% of americans shared that view. this shift was due to many factors, but most important was the profound change in the visibility of gays and lesbians in american society. this transformation affected not only everyday citizens, but legislators, mayors, presidents and judges. with these changes, the traditional judicial understanding as liberty, equality and due process, were suddenly called into question and rightly so.
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but it's important to note that those changes in public attitudes and understandings did not in themselves dictate any particular change in constitutional doctrine. bowers and windsor were both 5-4 decisions. only one vote changed over the course of those 27 years. had robert bourque been confirmed to the supreme court and had kennedy, therefore, never been appointed to the court, the outcome of windsor surely would have been 5-4 the other way. so, my point was that the divergent outcomes of these cases were shaped by at least two critical factors. the general public understanding of homosexuality at the time of the decisions and the particular interpretive approaches and values of the individual justice who happened to be on the supreme court at the specific
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moment when the issues arose. in the years after windsor, there was a virtual avalanche of lower court decisions invalidating state laws denying same-sex couples the freedom to marry. the other shoe, as scalia predicted, was about to fall. bergefeld versus hodg, the supreme court, in another bitterly divided 5-4 decision, held that states could not constitutionally deny two persons of the same sex the freedom to marry. the opinion written by anthony kennedy was premised in what he described as the transcendent
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importance of the right to marry. marriage allows two people to find a life that cannot be found alone. it is essential to our most profound hopes and aspirations. conceded that marriage had traditionally been understood as between a man and woman, he declared it is appropriate and choices central to individual dignitiny and autonomy can be protected by the constitution even if they are not explicitly listed in the constitution and that the court had long recognized marriage as one of those implied fundamental rights, kennedy concluded that although the limitation of marriage to opposite-sex couples may have long seemed natural and just, its inconsistency with the fundamental right to marry is now manifest. predictably chief justice roberts and justices scalia, thomas and alito were vigorous in their dissents. robert s accused the justices radical activism. he said the court decision is, quote, an act of will and not legal judgment.
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the right it announces has no basis in constitution. justice scalia, thomas and alito authored similarly scathing dissenting opinions. justice scalia charged, for example, the majority's opinion lacks even a thin veneer of law and that it is, quote, a naked judicial claim to superlegislative power fundamentally at odds with our traditions and our system of government. justice thomas added that the majority's decision threatens the religious liberty that our nation has long sought to protect and evidenced a deep corruption of constitutional interpretation. so, who is right? the mere fact that five is more than four does not necessarily make the five correct even though it makes the law. so, who was right? let me offer a few observations. first, the fury expressed by the dissenters in their condemnation
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of the majority's opinion is completely unwarranted. there are reasonable grounds to disagree with the court's decision, and i'll get to them in a moment, there is nothing about the decision itself that merits the screeching charges of judicial usurptation of the democratic process hurled by the four dissenters. indeed those very same justices have embraced highly controversial and activist interpretations of the constitution. in awarding, for example, the 2000 presidential election to george w. bush in holding affirmative action program unconstitutional, in holding gun control regulations unconstitutional. sorry. in holding laws that regulating campaign expenditures and contributions unconstitutional. and in holding the voting rights act of 1965 unconstitutional. to cite just a few examples. for them to purport to stand tall on the pedestal of judicial
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restraint is nothing short of hypocrisy. second, there are, in fact, reasonable grounds on which to disagree with the court's analysis. in invalidating laws prohibiting same-sex mairrriage, justice kennedy relied specifically on the argument that marriage is a fundamental right and that government, therefore, cannot constitutionally limit the right to marry even to same-sex couples without a compelling justification. but the very notion that the constitution protects unenumerated rights that are not mentioned in the constitution has always been a highly controversial concept. though the constitution expressly projects the freedom of speech, the freedom of religion, the freedom from unreasonable search and seizures and other expressly delineating rights, a central puzzle in constitutional interpretation has always been whether the constitution implicitly also protects other rights that have not been expressly spelled out
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in the text. now, historically the court has recognized that such rights exist including, for example, the right not to be sterilized, the right to use contraception, the right to privacy, the right to vote, the right to decide for oneself whether to bear or beget a child, the right to raise one's own children, the right to travel, the right to vote and so on. but the recognition of such unenumerated rights is always a tricky business. because it gives the justices potentially enormous authority to override the democratic process by imposing their own particular value judgments about what they happen to think to be fundamental rights. so, as the dissenters argued, one constraint that has sometimes been suggested by the justices is that the court should recognize an implied fundamental right only if the claimed right is one that has been deeply rooted in our
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nation's history and tradition. marriage, of course, is such a right. but is as the dissenters argued, how we think about that in the context of same-sex marriage is complicated. what is deeply rooted in our nation's history and tradition, they argue, is marriage between two persons of the opposite sex. not marriage between two persons of the same sex. thus, in their view, the court in bergerfeld was not protecting a right that was deeply rooted in our nation's history and tradition, but instead creating an entirely new right out of whole cloth, a position they insist that is beyond the legitimate authority of the supreme court. now, although this is a reasonable argument, it is not compelled by the actual practice of the court, which over time has not limited itself to defining constitutional fundamental rights in this manner. but the point is certainly an arguable one and the dissenters'
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objection on this score is far from crazy or irresponsible. third point i want to make is that my own view is that the court in bergerfeld made the wrong argument. that it should have decided the case not on the ground that marriage is a fundamental right, but on the ground that discrimination against gays and lesbians violates the e s the e protection clause, and i say it for two reasons, the first of which, which is obvious, i think it is a stronger argument legally and less open to the kind of challenge that i stated a moment ago. i'll come to my other reason later. so, the supreme court generally holds that laws are consistent with equal protection clause as long as they rationially further a legitimate state interest, a highly differential standard. but the court has also held that laws discriminate because of suspect criteria are suspect
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under the legal protection clause. now, because laws discriminating against african-americans are the paradigm violation of the equal protection clause, the court generally considers several factors in deciding whether discrimination against any particular group should be deemed similarly suspect. first, whether the group has experienced a long history of invidious discrimination. second, whether the defining characteristic of the group is essentially immutable or unchangeable. and third, whether the group can effectively protect itself against discrimination through the political process. now, those who challenge the constitutionality of laws that discriminate against gays and lesbians maintains that such discrimination satisfy such criteria and such laws should presumptively be understood as
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unconstitutional for equal protection reasons. in response those who defend the constitutionality of laws discriminating against gays and lesbians maintain that homosexuality is a choice, that what they call a history of discrimination is, therefore, no different than a history of discrimination against arsonists, robbers and murderers and that gays and lesbians in any event have ample political power. in their view, then, laws that discriminate against'dñ homosexs are completely different constitutionally than laws that discriminate against women, japanese americans, et cetera. this equal protection argument would have been a much better basis for the court's decision than its reliance on marriage as a fundamental right not only because i think it's a stronger argument but also because it would resolve all discrimination against gays and lesbians, not only the issue of marriage. why do i think this is the
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strong argument? well, gays and lesbians have clearly been subjected to a long history of invidious discrimination. sexual orientation is not a matter of choice. and gays and lesbians consistently had their interests dismissed and overridden in the political process. put simply and especially in light of that history, and the history i described earlier, laws that discriminate against gays and lesbians whether in marriage, in child custody disputes, in employment or housing or any other context should properly be deemed constitutional suspect in the sense they are highly likely to be tainted by animus, ignorance and prejudice. this to me is the deepest and truest reason for invalidating all laws that discriminate against gays and lesbians. i'd like to close with one final observation. for most of american history, a particular understanding of religion dictated the laws on issues like sexual expression,
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obscenity, contraception, abortion and homosexuality. in the last half century due largely though not entirely to the supreme court of the ujs, those religious values have been pushed aside and individuals have increasingly been freed to act on their own personal and religious beliefs rather than to be dictated to by the religious beliefs of others. this is in my view a great achievement in a society dedicated to the separation of church and state. but it now does leave us with an interesting challenge. for the constitution also guarantees the freedom to practice one's religion and with the demise in these respects of the religious state, those who hold to traditional christian values now find themselves on the defensive. no longer able to dictate that others must act in accord with their religious beliefs, they now demand that they at least be permitted to act in accord with
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their own religious beliefs. hobby lobby demands the right not to provide certain contraceptives to its women employees. kim davis demands the right not to sanction same-sex marriages. catholic priests demand the right not to marry same-sex couples. and florists, bakers, hotel owners and restaurant owners demand the right not to have to participate in same-sex weddings. these are not easy questions for one who values both the separation of church and state and the freedom of religion, as do i. and those are issues that the court and society will continue to have to wrestle with as we go forward. but perhaps the most astonishing thing about the supreme court decision is that the backlash which was so anticipated has, in fact, been tso tepid. that may change over time, but i think not. this is not abortion. those who oppose abortion
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sincerely believe that it is the murder of children, and if one believes that abortion is the murder of children, it is easy to understand why you do not give up the fight. on homosexuality, the reality is that for most people they can live with it. they didn't think they could, they never imagined they could, but they can. so, thus far, the response with a few odd exceptions like kim davis has been almost nonexistent even in the states one would have most expected a vociferous response. and we can and should bask in the glory that our nation has taken another important step in our protection of human dignity and citizenship and equality. we have many steps left to take, but this is one that we can genuinely celebrate together. but to gain similar celebrations in the future, we constantly have to challenge the accepted wisdom.
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no one in this room would have imagined 25 years ago that the supreme court of the united states would have held that gays and lesbians have a constitutional right to marry. that was virtually unthinkable. and we must always remember that we, like those who went before us, hold beliefs that our children and our children's children will rightly come to regard as naive, foolish, and bigoted even though we don't understand that at the moment. and as we strive to fulfill the obligations of citizenship in a free society, we have to have the courage, the open mindedness and the integrity to question the conventional wisdom and always to challenge the nature of things. thank you.
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and we're live now on capitol hill. the house rules committee just sitting down ready to talk about a senate amendment to a bill that would repeal portions of obamacare and block federal funding for planned parenthood. live coverage right here, right now on c-span3.
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>> rules committee will come to order, and thank you very much. and welcome back to the rules committee in a brand-new beautiful year. i hope everybody had a restful and enjoyable holiday. i did. and i'm glad to be back. i swam 18 beautiful miles. took up swimming. and i survived. today the rules committee will consider the senate amendment to hr-3762, restoring america's health care freedom reconciliation act of 2015. hr-712 the sunshine for regulatory decrees and settlements act of 2015 and hr-1155 the scrub act of 2015. as we know, we have been debating something called obamacare now for years and years. and it's the most significant
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intrusion into the physician/patient relationship that our nation has ever experienced. it is the number one reason why jobs are being diminished all across this country. health care costs are increas g increasing, and plans have been canceled despite promises from the very beginning, and even today, of lower cost, no plan has lived up to the bill of sale. the reconciliation bill today that we're going to talk about presents another opportunity for congress to halt the increasing premiums and economic stranglehold that this piece of legislation has on our country. and that it has placed on our economy, and we're paving the way for patient-centered and market-driven health care solution hr-3762 will save the taxpayers as a cbo and jct joint
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tax estimated $315.5 billion and halts the government's funding of planned parenthood. i recognize what we're doing here today, not everybody agrees with. the committee will also consider addressing outdated and burdensome regulations, hr-712 combines three measures to improve transparency and accountability within the federal regulatory process, specifically closing a loophole that has allowed pro-regulatory plaintiffs and the agencies to use litigation as an excuse to enact burdensome and costly regulations that are opposed by the public and that place undue burdens on business and economic development and economic growth. hr-1155 will address the growing burden of regulations by creating a blue ribbon commission to identify existing regulations that really need to be repealed.
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i want to thank chairman price for being here today. obviously we have congressman yarmuth that is with us to equally defend the products that are coming before us today. i know we have a lot of work to do. there have been a lot of hearings on all of these issues. there have been lots of time for people to take a look and see what we're doing, and i'm delighted that you're here before we defer to our two solid witnesses, i'd like to talk to the ranking member and yield time to him as he chooses. the gentleman is recognized. >> well, thank you, mr. chairman. i just want to wish you and everybody on this committee, our witnesses, a happy new year. and i was happy to be back, until i saw what was on the agenda today. and the idea that we are going to for the 62nd time vote to repeal or defund or otherwise undermine the affordable care act didn't seem like a good way
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to ring in the new year, but i understand it's a political election season and that my republican friends are looking for some red meat to toss to their base. and i guess that's what this is all about. this is not a serious effort, as we all know. this is not going anywhere. the president will veto this, but nonetheless, i guess it's important for you to get the president to veto it, so we're going through this, this exercise. but if they were a serious effort, you would at least have offered an alternative. but under this bill i think you mandate yourself to come up with an alternative, but you don't have one in this bill. and then for good measure, you throw in planned parenthood defunding, and -- which seems kind of strange because you just passed a -- an appropriations omnibus bill that big chunk of my republicans voted for that continued funding for planned parenthood. but now we're coming back and you're going to have another
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effort to defund planned parenthood. again, another political ploy. but, you know, we ought to get through this as quickly as possible. not waste taxpayer money. not -- not prolong this unnecessarily, and so with that, i will yield back my time. and we'll go -- we'll move forward here. >> the gentleman yields back his time. speaking of effective use of taxpayer money, tom kahn is here from your side. tom is a person who i know is concerned about taxpayer money, too, and i'm delighted to see mr. khan here today. gentleman, welcome. we're delighted that you're here. obviously without objection anything you have in writing will be entered into the record. our awesome stenographer speaks texan and georgian and today we'll find out if she speaks kentuckian, i bet she does. she'll listen vigorously.
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>> thank you for the members allowing me to present from the budget committee. i, too, want to wish everybody a happy new year and look forward to a productive 2016. this is an important piece of legislation. and it's a significant piece of legislation. and it's the first time that we will be able to pass a piece of legislation that will do the wishes and accomplish the goals of the american people, and that is, the repeal of obamacare and put it on the president's desk. first time that that has happened since the passage of this legislation, so i think this is an exciting opportunity that we have to truly represent our constituents across this great land. this bill represents months of work by seven different committees as well as the full house and the senate. it also reflects the concerns of millions of americans, families, job creators, docs, health care providers who are experiencing first hand the harm being caused by obamacare. it's harm to the accessibility of care, to the quality of care and to the affordability of care and as you mentioned, mr.
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chairman, harm to the economy of this great nation. under the president's health care law individuals and families are facing higher premiums and deductibles. we hear stories about it daily. they are providing more for health insurance that provides fewer choices and less access to the physicians they want to see. employers are finding it more difficult to provide adequate coverage for their workers. millions of americans have been added to a medicaid program that in many cases leaves beneficiaries struggling to find a doctor or the treatments that they require, and that burdens states with a one-size-fits-all program here from washington. this is the status quo in america's health care system right now. it's the status quo that's doing real harm to real people. and it's precisely why we're here today to talk about how we can provide relief for the american people from the more coercive elements of obamacare while paving the way for patient-centered solutions to the challenges in our health care system. this bill repeals nearly a
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trillion dollars, nearly a trillion dollars, in obamacare taxes including the medical device tax which is a direct threat to the type of quality improvements and innovation that we need and want in our health care system. it eliminates the individual and employer mandate penalties as well as an obamacare slush fund. the bill rolls back the law's medicaid expansion which has only added millions of americans to a system ill equipped and ill designed to support those already in the program. it repeals the premium subsidies and tax credits which have failed to control and, in fact, have exacerbated an increased health care cost coverage costs across this country, making that coverage less affordable and accessible to millions of americans. the repeal of both of these components would be on a timeline to allow for a new set of reforms that will make the purchase of health insurance financially feasible and do so in a way that gives individuals and families and employers the power to choose the type of coverage that they want for themselves, not the washington forces them to buy.
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hr-3762 would also halt federal funding for abortion providers prohibited under this legislation, while increasing, mr. chairman, increasing, funding for community health centers so as to provide increased accessibility to care for women across this land. this legislation represents a good-faith effort to repeal as much of obamacare as possible under the restraints inherent in the reconciliation process. of course, we wouldn't be here today discussing how to conclude the reconciliation process had congress not successfully adopted a budget resolution agreement for fiscal year 2016. without a budget there would be no reconciliation process and a successful budget process is critical that allows us to address the most difficult challenges that this country faces and the obamacare and the damage it's doing to the american people's health care and economy is certainly one of the tremendous challenges that we face. while this bill would lift the burden of obamacare it's only the first step -- first step -- towards achieving a better
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outcome for the american people. repealing obamacare would end the harm that is causing but it would not fix what has ailed our health care system for years and to that end we must and we will pursue an alternative patient-centered reproach to reform that will put patients and families and doctors in charge of health care decisions and not washington, d.c. there are many positive solutions out there, and many have been introduced in this congress, and i look forward to the house bringing a package of solutions forward this year. so, while we're here today to discuss legislation that would repeal obamacare, we must not lose sight of the ultimate goal, which is to improve america's health care system so that all americans have the financial wherewithal to be able to purchase the kind of coverage they want for themselves and for their families so that those with a bad diagnosis of a pre-existing illness or injury will have access to quality affordable care and so that physicians and other health care providers across our land and the innovators across the land will have the freedom to provide
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for the patients and develop better treatments. i want to thank you, again, for the opportunity to address this committee and i look forward to this bill coming forward and i look forward to your questions. >> chairman price, thank you very much. mr. yarmuth, welcome to the rules committee. i'm delighted you're here and the gentleman is now recognized. >> thank you very much, mr. chairman, ranking member mcgovern and the members of the committee. i want to extend greetings and happy new year to all of you. it's a pleasure to be here. it's an honor to be here to talk about hr-3762 legislation to dismantle the affordable care act and defund planned parenthood. as you all know this will be the first rule of the new session of congress, but i hope it is not a precursor to what we can expect in the weeks ahead. this does not take on federal programs that are broken and badly needing reform like our immigration system, our campaign finance system or our judicial system, for example. instead, it seeks to dismantle programs that are working, programs that are helping the american people get the health care they need.
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the affordable care act has helped expand health coverage to millions who needed it, lowered cost for those who receive it and has moved us closer to affordable care being considered a right not a privilege and only enjoyed by a select few. no place is this working better than in my home state of kentucky where our previous governor embraced the many benefits of the affordable care act including medicaid expansion and our state exchange connect has been considered one of the most successful in the nation. we've seen the uninsured rate statewide cut by more than half and in my district alone in the city of louisville, the uninsured rate has dropped by 81%. pretty astounding. there are fewer than 20,000 uninsured people in my congressional district of 7825,000. let's compare those a.c.a. numbers to what the cbo says about this legislation. according to the congressional budget office, quote, enacting hr-3762 would increase the number of people without health
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insurance coverage relative to current law projections by about 22 million people in most years after 2017. the office goes on to say that such an effort, quote, would result in a less healthy population in the nongroup market and correspondingly higher average premiums and the cbo adds when you look past the ten-year score the effect of the legislation on deficits becomes increasingly negative over time. so this legislation would increase the number of unshirr uninsured by more than 22 million and higher premiums for those lucky enough to have care as well as increasing the federal deficit over the long term. other than that it sounds like a great idea. but that's not all. this bill also defunds planned parenthood and i have to issue a disclosure here, i'm a former member of planned parenthood of louisville and i've seen first hand how important planned
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parenthood is to the people that organization serves and they serve a lot of people. and i might add that in the organization on which i served as a board member, that organization, planned parenthood, did not provide abortions. all they did was solid, basic health care, for young women, men. one in five american women have received care at a planned parenthood facility. more than 90% of that is preventive including obgyn services, lifesaving cancer screenings and other important health exams. and anyone who suggests that our already overburdened community health centers could simply absorb millions of patients should planned parenthood be
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defunded doesn't understand how our health care system works. even the executive director of the american public health association called that proposal ludicrous. but i wouldn't stop with just that proposal. this whole bill is ludicrous. it's not a serious approach to reforming the affordable care act and like the 61 other attempts to dismantle the a.c.a. it has no chance of becoming law. i know groundhog day is a month away but this is like being in the movie "groundhog day." with that i yield back, mr. chairman. >> thank you very much for your feedback. chairman price, you have for years and years devoted your life to the health care of others, patients that you served when you were a physician and your service to the united states congress and the american people now as a member of congress and certainly as the chairman of the budget commit e committee, do you believe in any way that there is a great way to
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serve people at a lesser cost and give people what they want with health care? or do you think we're just going to throw people out on the street? >> i appreciate that, mr. chairman. look, there are so many better options that we have as a nation that would respect the principles of health care that virtually everybody holds dear, regardless of their ideological stripe. we want a system that's accessible for everybody and that's affordable for everybody and that's of the highest quality and provides the greatest number of choices for patients. the reason we oppose obamacare isn't because the individual that proposed it or even our friends on the other side of the aisle that passed it, the real we oppose it it's doing real harm to people in the health compare and it's harming our economy. i look forward to a robust debate to come forward with the replacement bill for obamacare which is why this bill, this proposal that we have today, would not enact many of these changes until those -- those solutions are put in place.
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so, we've got so many opportunities to address the issues where patients and families and doctors are making these decisions and not washington, d.c. we don't need politicians making these decisions for patients and that's a core principle that the american people hold dear. >> mr. price -- dr. price, evidently there are some financial problems that are associated now across the country with these -- if i call them co-ops if that's the right term that financially have reached their zenith or their apex in being able to charge before losing people and they're going broke. >> they are. >> what's that status? >> these are the exchanges that were put in place that the states are trying to pool people together and provide coverage for folks, many of whom had coverage before through their employer and their employer pulled out of that coverage because of the disincentives in obamacare. and many of those exchanges, in fact, the one in kentucky is having challenges and my friend
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from kentucky right here what he doesn't -- what he fails to notify folks is that kentucky's average insurance premium rates increased under obamacare by 25% in his own state. premiums are up, deductibles are up. i get calls from my former physician colleagues almost weekly telling me that patients in their office are now electing not to get care because they can't meet their deductible. if you're a man or a women out there, single mom, single dad out there, and you've got a -- you make 30, 40, $50,000 a year and your deductible is $10,000 which is routine under obamacare, you may have coverage, but you don't have care, because you can't afford to make the deductible. this is not a way to provide health coverage for the american people and, again, i look forward to a positive debate and commonsense solutions. patient-centered solutions that we'll bring forward this year. >> yeah, yeah. and the last point is we
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continue to discuss this important issue is, and you got to guess about how much you're going to make. >> yeah. >> at the time you get on it. if you guess wrong, you owe more money. >> penalty. >> it just creates a problem. that's -- that to me is the employer and the participant, the family participation. and lastly, boy, if anybody's got a disabled child, get ready. get ready. it's -- it's -- it would not be a chosen plan. >> yeah. >> mr. chairman, you know about that better than anybody. >> mr. chairman, may i respond to just the comments about kentucky? >> i welcome response. >> about kentucky? because our co-op did have problems. our exchange has not had problems. our co-op had problems. we had a nonprofit co-op. it lost in its first year $60 million. and at that point congress cut -- slashed the subsidy that
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was put in place to help support these co-ops because they were getting -- they knew they were going to get adverse populations. they knew they were going to get the sickest populations. and congress cut that subsidy. in the second year of the co-op, the co-op lost -- actually on pace to break even, they were losing $4 million the second year. on pace to make money. but because of the lost subsidy they had to go out of business. our exchange is alive and well. our exchange now has seven insurers offering coverage this year as opposed to three the first year. while there is one company that raised their rates 25%, that's nowhere near the availability of coverage at a lower price across the spectrum of the offering providers. just wanted to clarify that. >> thank you very much. we do need all the facts. and it is fair to point them up, not just from your perspective but from the perspective that may be in an area closest to
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you. >> thank you. >> i think what's great about it is if you like and it works for you, great. but we should not require people to go to it, and that's the problem. this is an onerous position. >> well, mr. chairman, that's exactly what my former governor recognized, that we had the opportunity to customize kentucky's system to help kentucky's residents and his system provides great coverage. i wish every state had tried to do that themselves. >> well, get ready, there will be a package near us soon, and dr. price is well aware of it and knows we're fighting one battle at a time. thank you very much. i'm delighted both of you have taken time to come back and have been most pleasant in your professional presentation. >> dr. fox? >> thank you, mr. chairman, i appreciate the time and our colleagues being here. i wasn't going to say anything but something mr. yarmuth just said sort of made my ears perk up. and it's -- it's double talk, i
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think. it's the kind of double talk that people outside washington get really frustrated with. you indicated that kentucky -- the kentucky co-op was on the verge of making money. but congress cut the subsidy. now, to me, that's not making money. that is taking advantage of hardworking taxpayer dollars being given to something that is failing. and then washington bails it out. your definition of making money and my definition of making money are two entirely different things. as long as the federal government will give you a subsidy, you're making money?
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that is just how far removed from average life in this country some people in washington are. you know, mr. yarmuth, i don't think you even un -- realize the contradiction in those two terms. >> well, would you -- would you like me -- would you give me an opportunity to respond? >> okay. go ahead. let's see if you can dig out of this hole. >> all right. there was a program put in place for the aca recognizing that certain insurance companies because it was a new program were going to have very little experience in setting rates. therefore, some were going to price their product too low. they didn't know. they didn't know who was going to enroll in the program, particularly the co-ops who were nonprofits set up in a number of states. in kentucky the nonprofit co-op
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taking its best guesses set prices too low. they ended up getting an adverse selection of patients. the program that was set up in the aca was designed to accommodate that because it recognized that over the first few years there would be these situations and in order to get insurance companies to participate, they would have -- the government would help make up that disparity. that program was cut by 90%. and many of the co-ops that existed around the country, who had been in the same situation, getting the sickest patients, the most heavy-cost patients, needed that subsidy to stay alive. they were adjusts rates. in this case the co-op raised its rates 20%. tried to. it wasn't an ing subsidy it was over the first few years to soften the blow for those with adverse selection. you might argue with the whole
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concept of setting that up, but it wasn't because there was a flaw -- i mean, that's not a duplicitous statement. the co-op was actually on its way to becoming a viable provider of insurance. >> with government money. >> not going -- not going forward, not going forward. they dug a hole too deep, and when the money that was actua y actually -- they were supposed to get didn't appear, they felt that they had to shut their doors down. beyond that, again, we have a very competitive situation in kentucky with seven more insurers. so ultimately there's no subsidy being given to them, and they're surviving quite well. >> dr. price, i want to let you speak in just a second. but, you know, mr. yarmuth, you act like dealing with adverse circumstances is not something all private insurance companies do every day. what is insurance? i think that's a problem that
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has gotten totally distorted in our country, too. we all buy insurance for our cars, hoping we never have to use it, and the insurance companies base the rates on their experiences about how -- what people are going to do with this insurance. it's higher for younger people. because we know a lot of them have accidents. and do things they oughten do because of their inexperience. it gets higher i think for older people because they have more adverse experiences. so, insurance companies know how to do that. and they've been doing it for a long time. and yet you bring in a program the federal government runs basically and subsidizes because it doesn't know what it's doing. and look at the failures. now i'd like to ask dr. price if
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everything i have read is correct, and i certainly can't read everything, is there a co-op in this country that's operating successfully? all i read about day after day is this co-op's failed, that co-op's failed, that co-op's failed. >> i don't have that information on the tip of my tongue. but many of the co-ops are indeed failing. and the reason is they don't have the flexibility. insurance companies have not been given the flexibility to set up the program in a way that works, as you mentioned. the fact is that obamacare has virtually destroyed the individual and small group insurance market in this country, virtually destroyed it. and so what we hope to be able to do for the bill we'll bring forward i hope this year will be to reinvigorate and reinvent if you will the individual and small group market in ways that is much more creative and expansive and allows greater choices and flexibility for individuals to gain coverage, not just in a given state but
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across this country. and -- but you got to let the insurers, the folks who know how to mitigate the risk and address the risk from a health care -- health coverage standpoint be able to do what they do best as opposed to having the federal government come in with a hammer and say this is what you're going to do and this is the only way you're going to be able to do it. >> well, i appreciate you bringing this bill to us again. i've made the case over and over, as you have, that what we need in this country is patient-centered health care, patient-centered insurance, not government-run programs. republicans have said repeate y repeatedly, yes, there were some people in this country who did not have insurance. but we had figured out that was a pretty small number of people. i also am reading that there are probably more people now not being insured than they were before this debacle was passed. and i -- i'd like to see us get
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back to the private sector, get the government out of health care. because i don't think it will ever be successful with washington trying to run health insurance and health care from washington. because they're two separate things -- >> that's right, they are. >> -- and i think that's something else we don't dwell on enough. people talk about health care and they're lumping health insurance and health care together. now, i think the federal government's trying to run both of them through obamacare and it's not going to work. i point out and i don't want to belabor this point, but i point out a lot that over the years we haven't seen homeowners insurance spike in cost the way health insurance has spiked in cost. we haven't seen car insurance spike in cost the way health insurance spiked in cost. and i think it's primary --
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there are two reasons for that. number one is because the federal government is involved so much in health care through medicare, medicaid, and trying to control the market. and the federal government doesn't get involved in these other programs. and, two, because we've overused health insurance over the years. and third-party payer encourages people to do that, and a large part of that has to do with the federal government running so many programs. but thank you very much. >> thank you. >> both of you for being here, and i yield back. >> thank you very much. mrs. slaughter. >> thank you, mr. chairman. good to see you all this afternoon. we could all talk about health care a long time, couldn't we, john? i understand, i heard the best news today that governor beven has changed his mind and he's not going to kill the health care which they couldn't call obamacare in my home state and yours, so i'm really happy to
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hear that, but i also read just last week a large number of republican governors planning to expand medicaid. they particularly mentioned that orrin hatch was having trouble with his governor. i think it's here to stay. and, frankly, i've never been able to understand the great zeal to take health care away from people. obviously a nation that has good health and provides for its people is going to be much stronger, and so i'm -- i think it's here to stay, but i know -- what is this -- the 62nd vote? i used to keep track of how much that cost. i know it costs $24 million a week to run the house of representatives. and how much we spent on over and over and over and over again. and we all know sitting here today that this is supposed to go the president. he's supposed to veto it and save everybody from what they're going through.
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we do play some bad games. i hoped we could start the new year off a little better than we are. i'm glad you're both here. you're nice guys, but i have to tell you, you talk about flogging a dead horse, trying to kill health care is not going to make it, boys and girls, and we ought to get on to the business of the country. thank you. >> the jantle woman yields back her time, thank you very much. the generally from oklahoma, mr. cole. >> i have my chairman of the budget committee. i have my chairman of the bro n bourbon caucus. so, but it is two really great members. i just wanted to make a couple of comments. and if you care to respond, that's fine. the first i know a fair amount about which is the planned parenthood portion of this. i think it's important for
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anybody listening to the proceedings, we don't fund planned parenthood. there's nothing in anything congress has passed that funds planned parenthood. we have an administration that makes decisions and through grants, because it's about 280-odd million dollars of family planning money in the omnibus, and about $60 million of that finds its way to planned parenthood, which is about a tenth of what they get. they get most of the money through medicaid. anybody that tells the bill funds planned parenthood. it simply didn't. that's a presidential choice. an administration choice. it's done through a competitive process to be fair. and, you know, different president could come to a different point of view. so, i think that's important for people to know. second point relates to the whole larger question of obamacare which, like every republican who was here at the time, i opposed and have multiple times voted to repeal. and i'm not one that says there
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are no winners under obamacare. there are some winners. there's no question that some people are better off. but the balance of people are worse off. i mean, and i think the statistics are pretty compelling that people who were happy with what they had are paying more and getting less now. that's just the reality. their deductibles are higher. their insurance is higher. and we did not find a way to improve for some without hurting the many. and i think that's what we're trying to do here is find an effective way to make sure that we don't punish americans that were satisfied with what they have as the way to help others. and there's got to be a different and a better way. i'm typically pleased to hear that the legislation does require that we present an alternative. i think that's something frankly i would say on our side we should have done a long time ago. i know my friend chairman price thinks that. he's worked hard on some alternatives and there are
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competing republican alternatives out there. the republican study committee has had one for years that has had 100-odd, 30 or 40 co-sponsors, so i think we'll get to that point. but i think it's an important point in the debate. yes, we do know that the president will almost certainly veto it. but that's his prerogative. if he chooses to do it. but i think the responsibility is very clear about who, you know, who defends this system and who would like to find a different alternative. so, this is an important step. it's something -- people laugh about we've done this 50-odd times. first time we've gotten it to the president's desk. the first time we've had the senate in a position to cooperate. it's fair to point out our friends on the other side in the upper body -- or the other body, i should say, you know, have consistently presented a debate from occurring there and going on to the president. that's the only reason why this hasn't been resolved at least at the presidential level a long
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time ago. i do think it's an important issue in the upcoming presidential campaign. i think both sides will make it an important issue. and, you know, that's something that i think this help set the stage for for both the proponents and the opponents. so, it's a -- it's a debate that's going to be with us. it's an important contribution to it. i thank both of you for being here, and helping crystallize the issue so people can see how the two sides differ in where, you know, where responsibility for planned parenthood resides and frankly where responsibility for obamacare resides and then we'll have an election, we'll see what people think. with that, i yield back, mr. chairman. >> thank you very much. the gentleman from massachusetts. >> well, thank you, mr. chairman. >> yes, sir. >> again, i want to be on record, too, as a strong supporter of planned parenthood. >> me, too. >> and i think -- and especially with the work that they do to provide mostly poor women and
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men, by the way, with the health care services that they need. the fact that we're trying to take that away from people i think is unbelievable. but, you know, i think what the american people are really frustrated with after watching this, you know, on tv is that, you know, here we are for the -- we have time to debate the repeal of the affordable care act now for the 62nd time. and my friend the chairman of the budget committee and so many others of my republican friends here talk about all the great alternatives that the republicans have, you're in charge. i mean, why don't you bring them to the floor? we passed a bill in 2011 that tasked congress to pass an alternative. you didn't do it. you passed a bill last year that said that congress has to, you know, provide an alternative. you didn't do it. we're now bringing up another bill that you task yourselves again to bring up an alternative.
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and i'm not going to hold my breath that you will end up doing it. but this is -- this has become kind of, you know, a theater of the absurd, where we are, you know, we go through these motions, you know, so that you can go back and tell the -- your right-wing political base that you're doing something when, in fact, you are basically kind of running in place. look, there is a difference between the two parties. we believe that health care ought to be a right for everybody in this country. i think my friends on the other side think it ought to be a privilege. i agree with the ranking member to making sure that people have adequate, good quality health care is good for the nation. it's good for our economy. it's good for our national security. and so we could have that debate, but there are a lot of other things that we need to be doing from dealing with our immigration challenges. we need immigration reform bill. to, you know, continuing to improve on our infrastructure, do a whole bunch of other things and i was kind of hoping that the first thing out of the box
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would be not a bill that's going nowhere but a bill that actually reflects some bipartisan input where we could actually do something good for the people of this country, and i guess that may be too much to ask. but my new year's resolution is to not talk a lot about bills going nowhere. so if you want to know what my questions are just replay camera 61 other times and you can find out what my questions are. if you want to find out what the answers are, you can replay the camera and you can listen to the answers. i yield back. >> thank you very much. the gentleman from georgia is recognized. >> thank you, mr. chairman. >> yes, sir. >> i've made some new year's resolutions of my own and i'll try to get out of the us against them mantra that seems to permeate this place. because i didn't talk to a single person back home over the holidays who was worried about the us. i talked to a lot of folks who were worried about the them. folks that were worried about their neighbors that were struggling. folks flat were worried about
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one another and no time better than the holiday season to be focused on one another. but it doesn't have to end when the holiday ends. dr. price, the theater of the absurd would be defined by folks to a person that has dedicated his life to providing health care to other people doesn't care about providing health care to other people. i don't understand how in the world that we are advantaged by characterizing someone not caring about folks. i want to put it to you directly. when the gentleman who i believe held the seat you hold, newt gingrich, was running this institution in 1996, he passed the largest piece of health care reform legislation that had been passed in my lifetime, and specifically intentionally with president bill clinton decided to abolish all pre-existing
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conditions for federally regulated plans but to leave it to states like kentucky to sort out pre-existing conditions in state regulated plans. where we are today is that folks have said pre-existing conditions are a problem. if you lose the genetic lottery at birth, you shouldn't be penalized for the rest of your life. we care about our neighbors, and we want there to be a place for everyone at the health insurance table. is that or is that not not just the budget committee position, not just the republican conference position, but the doctors caucus position and the position of your health care replacement bill as well? >> absolutely. and i appreciate the question and the comments. and i along with dr. burgess and others in the medical profession spent decades, literally decades, caring for thousands and thousands of people regardless of their means or their capability of paying for
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that care. and it is -- it is frustrating to be characterized as an individual who wants to remove health care. you know that's not true. you know that's not true. we're not interested in removing health care from anybody. in fact, what we want to do is have a health care system that actually is responsive to patients. not responsive to government. not responsive to insurance companies. but responsive to patients. and sadly, that's not the system that we have right now. we have a system that is responsive to the federal government initially and then to the insurers and then the patient is way down there on the list. we just don't believe that that's the way this ought to be run. again, i'm so excited and enthusiastic about the opportunity to bring forward the positive solutions that we've been talking about for a long time. i've had a bill since -- since before obamacare was introduced that called the empowering patients first act that would do just that, empower patients in this system. because right now we don't have a -- have a system that empowers patients. >> i think back to that 1996 reform, and the idea was that
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states would take care of pre-existing conditions on their own. states didn't -- >> correct. >> -- and that's how we found ourselves here. i think when we fail to act we -- and fail to encourage our states to act, we get what we get in terms of popular -- popular opinion. but if i remember correctly, mr. yarmuth, kentucky was one of those states in the 1990s that did try to act on pre-existing conditions, and if i remember correctly, it was a disaster with insurance companies of every stripe fleeing the state. the legislature ultimately recognizing the failure, repealing that bill, and now coming back with what you have described as a very successful replacement program. my question to you is, if that is as i recall it being, what is the nature of the -- of the -- of the vitriol here? why can't we declare victory that president obama persuaded the nation that pre-existing
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have no place in health care. and why can't we declare victory that lifetime caps have no place and they're gone. why can't we declare victory that for children there's a place for them under the tent and move on and why can't we recognize that much like the failures of kentucky in the 1990s, there are small businesses in my district that were trying to provide quality health care to their employees who can't do it any longer. there are businesses in my district who employ families with special needs children who wanted not any plan, but that one plan that they had and they chose that company for those reasons, they organized their entire life around care for their child, and that plan no longer available to them. i recognize the successes of president obama's conversation with health care in america and we ought to be able to bank those. i don't understand why folks, particularly folks who come from
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a -- from a state where you have recognized failures and you've come back even stronger the next time, why we can't agree to recognize failures in obamacare as well? >> i'd love to respond to your question. i think your observations are pretty sound. in kentucky what they did was basically prohibit basically prohibit health histories from being a factor in offering insurance. they didn't require people to have insurance. naturally, people waited until they got sick to sign up for insurance. so they all were losing propositions. it happened in tennessee as well. that's why the individual manda mandate, such a critical component of the affordable care act, because if you make those guaranteed issue provisions, eliminate pre-existing conditions you have to have everybody insured, otherwise people wait until they get sick and buy insurance if they can't be turned down. your comments about declaring victory on those points, we have done that in one respect. we have medicare. and medicare has no lifetime caps, no lifetime limits, guaranteed issue, all of those
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things. medicare works. and if i had been writing the affordable care act bill, i would have written a medicare for everybody bill. and ultimately i believe -- this is not a position of the budget committee, it's my own. the reason there is no replace coming from the repeal and replace movement is the realization is basically unav d unavoidab unavoidable. that's the only replacement to the affordable care act other than going back to some version of 2009 when premiums were going up 38% in kentucky and california and connecticut and many other places across the country, 38% in one year. the only viable replacement is some kind of medicare for all single payer system. >> i think that's exactly the kind of debate that i hope to have. i've been here 4 1/2 years. we haven't had that kind of debate yet. to say medicare works doesn't really speak to my christmas experience. i was with my family members on medicare. they were bringing me their
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statement of benefits and saying, how can you run a program like this? i get all these things sent to me in the mail. i don't need replacements for my c-pap machine, for my oxygen machine. who is keeping an eye on this? the program you define as success provides critical care to seniors all across this land. but every working american today is paying the highest medicare tax rates in the history of the country. >> would the gentlemen yield? >> for a program expected to be bankrupt by the time they arrive to utilize it. i would be happy to yield. >> i appreciate it very much. i really appreciate what you are saying about the importance of the pre-existing conditions and the things that we did. let me add to that that eight states and the district of columbia used domestic violence as a pre-existing condition and women could not be ensured anymore. that was done away with with the -- what i call obamacare.
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but one point -- i'm on medicare. i don't get anything like that to change anything. i think there are lots of companies -- remember, there was a time when everybody wanted to get you a scooter whether you needed one or not. but they did away with that. the federal government said you cannot do that. but the most important thing that i think i need to say to you about the medicare plus what we used to have is the overhead for medicare is 2%. the overhead for private healthcare with insurance was something about 28%. if we had done medicare for all, i believe that we would -- i agree with you, john. i think they would have been better off do that. >> we claiming my time. i would stipulate that i don't believe there's a single monopoly organization in the country that doesn't have lower overhead cost than competitive organizations. i don't think there's one, because when you don't have to compete for business and there's an unlimited supply of money
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coming in to you, you get to make different decisions. i'm only saying there's not a member that believes we can leave medicare alone and keep our promises to american taxpayers. >> we can always improve. >> the trustees we have empowered to to take care of the medicare trust fund tell us year after year after year that the window is getting smaller and smaller and smaller. and yet our go-to plan in so many of these debates that don't get into the details that are hard, but stay up there at the level of political rhetoric that is so easy, is let's just put everybody into medicare. it doesn't -- it does not work. but i would say to my friend, i wasn't trying to start that healthcare debate here. i was trying to say that -- >> we better have it somewhere. >> perhaps we deserve better from one another than to characterize folks -- >> i'm sorry that none of you voted for the healthcare bill. >> as i have reclaimed my time, i would say to my friend that i think we deserve better from one
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another than to characterize folks who want to protect life as those who want to take healthcare aware from low income men and women across this country. i think we deserve better from one another than to characterize folks who don't like federal mandates of insurance policies, folks who still want everyone to have access to insurance policies. i would go a step further, dr. price. i mean, you raised the issue of these heidi ductabigh deductibl. they say we have twice as much business. because folks have walked in the door and said, i have obamacare but i might as well not because i can't meet the deductible it has anyway. going back to 1996 and newt gingrich and bill clinton, they were pushing medical savings accounts hard. we have been talking about this for a long, long time.
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the president's healthcare bill moved us in that direction. we need to get patients in charge of their own healthcare. i have to say thank you to you, because i sit up here with the gentlem gentlemen from massachusetts and i love him. he cares about people and he speaks up on people's behalf day in and day out. but i could just replay his comments from the last 62 hearings, because they are always exactly the same. they are dismissive of the nine times we sent a bill to president owe be a mra tha oba. but this is the first time in five years that we're sending a bill to the president's desk that represents not -- not the will of the right wing base as my friend put it but go look at any summary of polling anywhere
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across the country, i use clear politics, you use whichever one you want, it represents the will of the people, not to dismantle of the everything and do nothing but dismantle everything and get it done better as kentucky itself has done. >> will the gentlemen yield? >> it was the will of the majority of the american people, mitt romney would be president not obama. if i repeated those 62, your comments sound the same too but longer than mine. >> i appreciate my friend's joviality. i see opportunity. i talk to a lot of folks who will write off 2016 as being a year of rhetoric and not a year of action. >> would you let me have another whack at it? >> i think we're better than that. i think we have an opportunity here. for this to be the first bill out of the gate, i would say to the budget committee chairman is
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a big deal to me. we should have had this debate the first time. the process should have worked the first time. if not then the second time and if not then the third time and the shame in this institution is that it took 62 times for the will of the people to make its way to the president's desk. the fact that folks prevent us from having this conversation, i would say to my friend in new york, the fact that she has to ask what people makes the point that my friend from north carolina made earlier. it is only -- i would ask my friend to start 2016 on a good note. >> let me just say one sentence. >> the gentle woman yield. the stenographers who are here are attempting to write down -- >> they're doing great. >> they are doing great. but it's hard for them to do great when we talk over each other. i would ask the gentle woman to hold on a second. the gentleman controls the time.
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he is one of the most generous young men i have met. he gives people an opportunity. i'm sure he will. let's please not talk over each other. that's my request. i would make that request on behalf of our stenographers so that we can accurately listen top each other. thank you very much. >> rob, would you yield to me for one second? >> i would be lhappy to. >> governor took off this week. i guess, did he not? since december. but it has taken him a month to discover that if he takes that healthcare away from us people in kentucky, they not going to be pleased. i think that's something we might all take under advisement. >> reclaiming my time, i would ask the budget committee -- reclaiming my time from my friend -- >> excuse me. i would ask -- excuse me, i would ask that all the members
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of this committee please respect the gentle person, whoever that might be, that has the time. when you yield back the time, you give back the time. the gentleman from georgia is recognized. >> i would ask that my chairman on the budget committee and a member of the ways and means committee, is there any set of circumstances, any policy discussions going on that i'm unaware of that are dealing with taking healthcare away from patients as opposed to empowering patients to have access to that healthcare? >> not a one. i appreciate that. because this is one of those that is so false. what we desire to do as you well know is to make certain that every american has access to the kind of coverage and care that they want. our friends on the other side talk like obamacare is already accomplished universal coverage, it has everybody with coverage. there are over 30 million people still without coverage.
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that's not the policy, that's not the program that we would put in place. we believe there ought to be appropriate at incentives for individuals to purchase coverage and a financial wherewithal to purchase it as opposed to having a hammer come in from the federal government and say, this is what you have to buy and this is the way you have to do it. >> i fought my republican colleagues and my democrat colleagues for not recognizes failures. i credit you with bringing this before us today. i'm grateful. i yield back. >> thank you very much. the gentleman from florida. >> thank you very much. mr. chairman, you know i will begin my remarks by saying to our colleagues -- it's a new year. for me to say a couple of things. one, in 1992, when i ran for
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congress, i ran on a platform of universal healthcare. i believed that then, and i believe it now. i think that every american should have a right or ought to have healthcare. now for 22 years, coming up on 22, this is my 11th term, we have had virtually the same argument over and over again. and it's regrettable that we would start the new year in a partisan manner that can only lead to acrimony. i had great hope that we would come here with new ideas and new resolve to do things in a bold fashion for the american people. but now that the debate over the am an omnibus is over and no longer
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dominating the news, the house will consider the amended budget reconciliation bill that the senate passed on december 3rd, and that vote was 52-47, aware you're doing this, aware that you can't override a veto. so republicans acknowledge that the intent of this purely political bill is to deliver on years of campaign promises to send the repeal of the affordable care act to the president. the one thing that i know is repetition that i say to you when i advocated universal healthcare, i did not know barak obama's name. and we came here and you have been successful in your messaging to many. it's not looked upon as praise
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worthy when you say obamacare. you started it as the nuance in a way that was being critical, not only of the policy but of the person that happens to be president. i have said to you all before in my view, we have not gone far enough with reference to healthcare and toward that end rather than it being obamacare, since i was here and worked on it as did others of us long before dr. price came to congress, long before others came to congress, we were working on it. so i would like to start calling it hastings/obamacare. so that we can have it referenced that way. 22 years ago, 42 million
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americans did not have health insurance. that was 22 years ago. when i came here. now, the thing that would be alarming to the republicans and sometimes people ought do things like this is if the president didn't veto this measure. my to you, dr. price, is do you feel that you would be left with a workable health program? and the second portion, if the president did not repeal this measure? and the second portion of that, would it not have been better to come here with one of those proposals or several of them -- i think you put it that you would be back with a package of solutions. this is after voting two times to tell yourselves that you were going to have an alternative and then come here with legislation that has built in it yet another
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time that you are going to have an alternative. perhaps you can tell us when that alternative is going to be put on the table and why it isn't here today. because there's going to be people if this measure were to become law that would not have insurance. and it's just that simple. it doesn't require a whole lot. go ahead and respond to me, what would be workable if this law, as you propose it, were to pass? >> well, i appreciate the question, because what this proposal does, what this bill does and what will go to the president's desk is a proposal that would not take anybody's insurance away from them right now. as opposed to -- >> that right now -- >> that's exactly right. >> when would it take it away? >> we're not going to take it away. we're going to fashion a patient centered system. the gentleman will be pleased to know there are many provisions that are bipartisan. the reduction of the prevention
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of public health fund had 147 democrats support that when it came to the floor of the house. delay of the individual mandate, 27 supports that, employer mandate, the repeal of the medical device tax. so there are significant portions of this that are bipartisan. >> we claiming my time. as my good friend -- he is my good friend from georgia pointed out that there are things that we should declare victory about in the affordable care act, and there are things in the affordable care act that need to be fixed. and to my way of thinking, a more sensible approach would be for us to work on the fixes rather than start all over again. and if you were going to start all over again, why didn't you start over again today? that's what i don't understand. you are going to offer to repeal something and then you say that this law allows us to work along
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the way to protect people. i don't see it that way, doc. i find it regrettable. let me ask another question. 54% of planned parenthood facilities are located in rural -- and i remembpresent sof those rural areas of america or medically under served areas. i represent a lot of those areas. where exactly are the women in these areas supposed to go to get a pap smear or to get a mammogram or many of the other medical provisions that planned parenthood affords that they would not have available to them in the rural and medically underserved areas? >> which is why we increase funding in this bill by $235 million in fiscal year '16 and another $235 million in fiscal
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year '17 for community health centers. as you know, there are hundreds of planned parenthood clinics. there are over 13,000 community health centers across this sunday. and that's why they are increasing resources would be available for those men and women to go to the community health services and receive the care that they need. >> $235 million? >> in addition to the $3.6 billion. >> that sounds like a lot of money until you talk about 50 states and then it's not much at all. you have -- all of your career you have helped people. you and any physician and there are many of you here in congress that have done things to help people. i understand that. but there are people that don't have doctors and aren't near any physicians. where physicians may come once a week in certain rural areas of this country.
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i find it incredible that we would put ourselves in the position of saying to women in this country that a service that has been provided to them is not worthy. and i think it is. and all of the business about planned parenthood, you have had state investigations and activities of discredited the allegations regarding all of the things that were being said, even by presidential candidates. five states cleared planned parenthood of any wrongdoing. the committee here has investigated the allegations against planned parenthood, and they haven't come up with any evidence that there the problem that is talked about. the fact is, only 1% of planned parenthoods are involved in any
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kind of fetal tissue research. this is the 62nd vote to repeal, de-fund or otherwise the affordable healthcare act. when will you hold your first vote on your alternative? >> well, as you and i have had discussions in this committee as a matter of fact, hr-2300, the empowering patients first act, it was brought before obamacare was introduced. i look forward to the day when we can bring that forward. >> you could have brought it today along with this one. we are going to do something else here about scrubbing something, sunshine for regulatory decrees and settlements act. we are going to that. we could have done this. we could put it in another one of them packages with three different measures in a rule. all of the other measures that have been offered aside from the ones that i remember very
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vividly. i asked you that question and you offered to me that there was an alternative. i don't doubt that. but we are voting on it here today. so what are you going to tell the 22 million -- nearly 22 million americans who at some point -- you say not now -- will lose their healthcare as a result of this legislation? did you think about that? >> absolutely. which is why i'm excited about the new speaker and the challenge that he has brought to the entire house, and that is to come forward with a replacement piece of legislation this year. and it's important that what i would tell those 22 million people is that we will have a better solution, a patient centered solution, a solution that puts them in charge of their healthcare, not washington, d.c., and allows them to choose the physician that they want to see and the place where they want to be treated, not have it dictated to them by washington. and i can't tell you how excited i am about the opportunity
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that's going to come forward. >> i tell you who will be the winners. the winners, no matter what we do, are going to be insurance companies. they have been here and they're going to stay here. and they're going to continue to do the things that they have done. for all the years -- coming up on 51 years that i've been a professional, my insurance has gone up every year. not one did it not go up. and that isn't because of health problems or anything else. coming up on 80 years, i'm lucky to be here. the simple fact of the matter is that insurance companies are driving a part of this train. and some of them have acted responsibly. and the thing that is more disturbing to me than anything in my state -- it's one of the 22 states that didn't expand medicaid. and there are people right now in the state of florida nearly 900,000 of them that are

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